University of Massachusetts Amherst ScholarWorks@UMass Amherst School of Public Policy Capstones School of Public Policy 2018 The Abandoned Shipwrecks Act in Florida Tyler Wolanin Follow this and additional works at: https://scholarworks.umass.edu/cppa_capstones Part of the Law Commons, Other Legal Studies Commons, Other Public Affairs, Public Policy and Public Administration Commons, Policy Design, Analysis, and Evaluation Commons, and the Public Policy Commons Wolanin, Tyler, "The Abandoned Shipwrecks Act in Florida" (2018). School of Public Policy Capstones. 47. Retrieved from https://scholarworks.umass.edu/cppa_capstones/47 This Article is brought to you for free and open access by the School of Public Policy at ScholarWorks@UMass Amherst. It has been accepted for inclusion in School of Public Policy Capstones by an authorized administrator of ScholarWorks@UMass Amherst. For more information, please contact [email protected]. 1 The Abandoned Shipwrecks Act in Florida Tyler Wolanin Master of Public Policy and Administration Capstone May 1st, 2018 2 EXECUTIVE SUMMARY The Abandoned Shipwrecks Act is a 1988 federal law that grants states jurisdiction over abandoned shipwrecks in their territorial waters. The intention of the law is to allow states to form historic preservation regimes to protect historic shipwrecks from looters and salvagers. One of the most important beneficiaries of this law is the state of Florida, with the longest coastline in the continental United States and a history of attempts to protect historic shipwrecks. This law has been criticized since inception for removing the profit incentive for salvors to discover new shipwrecks. The Act has been subjected to a considerable amount of legal criticism for the removal of jurisdiction over shipwrecks from federal admiralty courts, but it has not received attention from policy scholars. The purpose of this study is to test the Abandoned Shipwreck Act against criticism from prominent Florida treasure hunter Mel Fisher: that the legal change would lead to the discovery of fewer shipwrecks by salvors. It accomplishes this by investigating the timeline of Florida’s grants of salvage permits, known as Exploration and Salvage Contracts prior to the 1980s and known as 1A-31 permits in the past few decades. These permits are charted on a yearly basis. Additionally, this study interviews archaeologists, salvors, and state officials in Florida, asking them to evaluate the effectiveness of the Act. This study finds that there has been a decline in the number of permits issued by the State of Florida subsequent to the Act’s passage, in comparison to the number issued in years prior to its passage. Interview data shows that practitioners, though having some criticism of the Act, do not think that it has led to any reduction in wreck discovery. They offer other explanations for the fluctuation in wreck discovery, including technological advances. Though the reduction cannot definitively be traced back to the passage of the Abandoned Shipwreck Act, it does mark the issue for further policy study, to determine the effects of the Act on the ocean floor and not merely in the courtroom. 3 INTRODUCTION Since its passage in 1988, the Abandoned Shipwrecks Act (“the Act”) has been a target for criticism from salvors. One of the most common criticisms is that, by removing the profit motive for salvage, it will reduce the incentives for shipwrecks to be sought out. Florida is a state that still has a legal salvage industry, making it an excellent source of data on shipwreck discovery. This paper attempts to answer the question of if the Abandoned Shipwrecks Act has reduced the discovery of shipwrecks. The data used to answer this question is the number of commercial salvage permits issued by the state each year, from the 1930s to the present. Additionally, qualitative data comes from interviews with practicing archaeologists, salvors, and Florida state officials, who were asked about their experiences and evaluations of the Act. This paper will first cover the historical and legislative background of the passage of the Act. Subsequently, it will discuss academic work on the Act. This is mostly in the form of criticism in legal journals, and is devoid of assessments of the Act as public policy. After a discussion of the research methods and information on shipwreck permitting, the paper will discuss the quantitative data from that permitting, which shows a reduced number of permits granted after the passage of the Act, compared to the number granted prior. This will be followed by a detailed discussion of the results of the interviews, where the Act is largely praised by archaeologists, who also question the existence of salvage operations at all. Conversely, salvagers discuss the heavy-handedness of the state. Final conclusions will be drawn, exploring 4 different interpretations of the data. Policy conclusions, including the options of a radical expanding or contraction of the legal salvage regime, will conclude the paper. BACKGROUND The Abandoned Shipwrecks Act is tied closely to the state of Florida. The Act was intended to address a nationwide problem; but the inciting incident that spurred Congress to act was the 1985 discovery of the Nuestra Señora de Atocha, a Spanish treasure galleon that sank in a 1622 hurricane off the coast of the Florida Keys. The wreck was discovered by professional treasure hunter Mel Fisher, who won a legal battle against the State of Florida to claim ownership of the wreck. The Abandoned Shipwreck Act was passed later in the decade in response to this controversy, and subjected shipwrecks to the jurisdiction of the state if they were found to be “abandoned.” Subsequent Congressional findings hold that this authority had already been vested in the state by the Submerged Land Act of 1953, and that the Abandoned Shipwrecks Act formalized this arrangement, upheld by a minority of admiralty court cases (NOAA, p. 2). This was a change from the previous status quo, which subjected salvage finds to admiralty law, with claims settled in federal court. States that made legislative efforts at historic preservation occasionally prevailed in federal admiralty court, but more often salvors were victorious. Many salvors, including Mel Fisher, opposed any change away from this paradigm, on the grounds that they would have less claim to shipwrecks they discovered. In addition to the obvious financial incentives involved in preserving this status quo, it was argued that many shipwrecks were discovered only because salvors had this financial incentive to discover them, and the legal change would remove this incentive and lead to the discovery of fewer shipwrecks. 5 Mel Fisher’s importance to the existence of the Abandoned Shipwreck Act cannot be overstated. His Atocha find was what led to the Act’s passage, which he militated against continuously. Born far from the ocean in Indiana, Fisher nevertheless was interested in diving from childhood. A military veteran and farmer in California, Fisher managed to turn his diving hobby into a business. He switched from SCUBA training to treasure-hunting in the early 1960s, and moved to Florida for a job. After other major treasure finds, Fisher discovered the Atocha in 1985, after over a decade of searching (Mel Fisher’s Treasures, accessed 2018). The Abandoned Shipwreck Act was not passed on its first try. The bill was introduced in three successive Congresses before being signed in to law in early 1988. The first bill was H.R. 3194, introduced in 1983 by Rep. Walter Jones, Democrat of North Carolina. This bill passed through the House of Representatives, but made it no further in the Senate than the Committee on Energy and Natural Resources (“H.R. 3194,” Congress.gov). The bill was stymied after a secret hold was placed by Senator Paula Hawkins of Florida, who would later receive several thousand dollars by Mel Fisher in the form of donations to her (failed) re-election campaign (Kleeberg 2007. p. 21). The 1985 version of the Act was introduced by Rep. Charles E. Bennett, of Jacksonville (“H.R. 3358,” Congress.gov). This bill was the subject of a considerable amount of media coverage, especially of the testimony by Mel Fisher. An article in the Christian Science Monitor provides a handy timeline of events. At the time that Fisher discovered the Atocha, Florida state law entitled the state to 25% of the salvage of an abandoned shipwreck. Fisher challenged this law in admiralty court and won. Re-establishing state jurisdiction, which had been usurped by the Admiralty courts, was the impetus for the introduction of the Abandoned Shipwreck Act, as it gave more powers to states for historic preservation. The CMS article describes the battle lines: 6 “State officials are joined in their opposition to admiralty law's jurisdiction by a growing chorus of archaeologists alarmed by the possibility that some historically priceless wrecks may be carelessly dismantled or even destroyed in the hasty search for gold. They say concern has been heightened by the swelling interest in treasure hunting after Fisher's find…salvors implacably oppose a state role in overseeing shipwreck excavation, however. They say state control of shipwreck salvaging would ultimately cause the wrecks to be declared off limits for amateur divers and erstwhile treasure hunters.” (Osterlund, 1985). This article and others appeared in mid-1985, prior to committee hearings. After an article in the Washington Post quoted some of Mel Fisher’s talking points, J. Barto Arnold III, Chairman of the Advisory Council on Underwater Archaeology, wrote back to the paper. “[The story] misrepresents a bill… the Abandoned Shipwreck Act of 1985 would give states the right to manage historically significant shipwrecks in their waters, but The Post characterized it as “federal legislation still pending that would give the federal government exclusive rights to all shipwrecks.